The Chair discussed the schedule for the meeting and reviewed the schedule for future
meetings.

The Chair informed the Committee that the Supreme Court had been discussing term limits
for members of all committees. A member suggested that if term limits were imposed for
the Committee, it would be better if the term limits did not apply to the attorney members
but only to the judge members. The member said that the attorney members who had been
on the Committee for a number of years seemed to have a real sense of history about the
what the Committee has done.

On another topic, a member asked whether it would be possible for the meeting materials
to be distributed to Committee members by e-mail. The member said that this would save
the cost of mailing and provide members a convenient opportunity to respond by e-mail
about whether they were planning to attend the meeting. An informal poll of the Committee
suggested that a majority of the Committee would support e-mail distribution of meeting
materials.

Staff reported that the Supreme Court had approved the Committee's proposed rule
amendments with a limited number of changes. Staff informed the Committee that the
amendments will become effective on March 1, 2006.

Staff explained that the Governor's Task Force on Violent and Sexual Offenders had
proposed an amendment to Rule 46 that would require detention hearings in certain cases.
Staff informed the Committee that Judge McCullough had also submitted a comment
relevant to pretrial detention under Rule 46.

Ms. Moore MOVED to approve the amendments to Rule 46. Ms. Schmitz seconded.

A member asked why the term "person" was used in the rule instead of "defendant." Staff
explained that this reflected the federal form and was likely because a material witness could
also be put in pretrial detention under the rule.

A member indicated support for Judge McCullough's position. The member said the
language of the state constitution requires that bail be made available for non-capital
offenses. The member said if the task force wants Rule 46 changed they need to amend the
state constitution first.

A member indicated that the language of the proposed amendment could be modified to
possibly make it constitutional. The member suggested deletion of proposed language

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requiring a magistrate to order pretrial detention. Another member suggested that the
"musts" in the proposed amendment could be changed to "mays."

A member observed that the first part of the proposed amendment suggested that a
detention hearing would only be held on a prosecutor's motion, but the second part of the
proposal said a detention hearing must be held "immediately on the person's initial
appearance." The member said these provisions did not mesh well together, because of the
implication that a magistrate had to act on holding a detention hearing even if the prosecutor
did not bring a motion.

A member said that the constitution would require bail to be set even if a magistrate
determined under the proposal that no combination of conditions would reasonably assure
the safety of the community if the person was released. A member responded that a very
high bail amount could be set in such a case.

A member said that the procedure described in the first part of the proposal was similar to
a regular bail hearing. The member said the last part of the proposal, requiring detention
under certain circumstances, was the part that created problems. The member said that the
constitution did not allow detention without the possibility of bail except in capital cases.

A member suggested that a problem the proposed amendment would address were
situations where a person is charged with a misdemeanor and can bond out without a court
appearance, even though the misdemeanor is a crime of violence. The member said that
requiring such persons to appear for a detention hearing might provide additional protection
for the community. A member responded that hearings were already required for persons
charged with crimes involving domestic violence. A member added that some districts
already have policies requiring court appearances when any crime of violence is charged.

A member said the procedure described in the proposed amendment would likely only be
useful in the uncommon and unusual case.

A member explained that the federal law on which the proposed amendment was based
provides for pretrial detention under limited circumstances. The member said that the
federal procedure had been held constitutional. Members commented that the bail provision
in the federal constitution was different than the state constitution's bail provision.

A member said that the proposal would be constitutional if it was limited to capital cases.
A member asked for a definition of "capital cases." Several members responded that these
were cases where capital punishment was an option, and that capital punishment has

-5-

not been an option in North Dakota for more than thirty years.

A member asked whether the provision could be interpreted as applying to types of cases
for which capital punishment was an option at the time the state constitution was
implemented. A member said that at the time of statehood murder and perhaps treason were
offenses for which capital punishment was an option. A member said pretrial detention
could be constitutional when such offenses are charged.

A member asked what tool could be used to keep potentially dangerous offenders locked
up before trial if pretrial detention is not constitutional in most cases. Members responded
that high bail could be imposed and that setting high bail in cases involving potentially
dangerous offenders is completely reasonable.

A member asked whether the proposal was in response to a specific case where a North
Dakota judge had released a person pre-trial and something negative had happened. A
member responded that the proposal seemed to be in response to national problems rather
than to any North Dakota case.

A member said that the proposal seemed to be a response to the Rodriguez case. The
member commented that if the governor's task force believes that a substantive change in
pretrial detention practice is required in North Dakota, it should propose a constitutional
amendment.

A member said that a "capital crime" in modern North Dakota would be a AA felony. The
member also pointed out that, under the proposal, pretrial detention is not mandatory unless
the magistrate finds that no release conditions would assure the appearance of the person and
the safety of the community.

Ms. Moore's motion to add the rule, as amended, to the annual rules package FAILED on
a unanimous vote.

A member said a procedural rule on forfeitures would but helpful, but that provisions in the
forfeiture statutes would need to be changed before such a rule would be possible. The
member said adopting a rule before necessary statutory changes were made would be putting
the cart before the horse.

A member observed that, under the statute, a forfeiture proceeding was a civil proceeding
and a criminal conviction was not required before a forfeiture could take place. The member
asked whether this meant that the burden of proof in forfeiture matters was preponderance
of the evidence. A member responded that, under North Dakota law, the prosecution needs
to show only probable cause for forfeiture and this causes a burden shift to the property
owner to show by a preponderance of the evidence that the property is not forfeitable.

A member asked whether the burden shifting calculation would confuse the jury in a
criminal prosecution. A member responded that the judge would make all decisions about
forfeiture.

A member said that the proposed rule was too much at odds with the existing statutes on
forfeiture. A member suggested that the question of whether an action should be a civil
action or a criminal action was a question the courts could answer through a rule. A member
said that a rule of procedure could supersede a procedural statute. A member said that the
forfeiture statutes were substantive, not procedural.

A member commented that having a rule like the one proposed would be a good idea. The
member suggested that the legislature look at the issue and give the courts the authority to
make such a rule.

A member asked for an explanation of how a forfeiture action works. The member asked
whether there would be a criminal prosecution and then a separate civil action to forfeit
property. The member asked why a criminal procedure rule would be necessary to guide
forfeiture actions when these should be conducted under the Rules of Civil Procedure. The
member said that, unless the legislature changes its approach to forfeitures, the Committee
should not approve a forfeiture rule.

A member said it would make sense to have the same judge who sits on the criminal case
decide the related forfeiture case. The member said that a rule allowing consolidation of a
criminal action with a civil proceeding would allow the same judge to decide both. A
member said such a hybrid action would be confusing for the jury. A member responded
that the judge would decide the (civil) forfeiture action while the jury decided the criminal
case.

-7-

A member commented that adopting the rule proposal would create confusion instead of
economy. The member said bringing together the forfeiture action with the criminal trial
would muddy both proceedings. A member reminded the Committee that there is no need
for criminal charges to be brought against anyone before a forfeiture action may be brought
and property forfeited.

A member asked whether the timeliness requirement, set out in statute and developed by
the Supreme Court in case law, would still apply if the rule was adopted. A member said
that there was nothing in the case law that suggested any problems with the statutory scheme
that the proposed rule could solve.

Staff commented that the proposed rule was based on the federal rule, but that the federal
rule contained provisions that went far beyond what North Dakota's forfeiture statutes
seemed to allow. Staff said that the proposed rule did not contain these provisions and,
therefore, was something of a watered down product.

A member said that the rule dealt with substantive issues that properly belong to the
legislature and should not be approved.

A member said that one advantage of having forfeiture proceedings fall under the civil
procedure rules was that third parties who might have an interest in the property would more
easily be able to involve themselves in the action. A member said it was also an advantage
for the defendant to be able to defend against a forfeiture action in a separate civil action
because the defendant would not have to give up self-incrimination rights in the criminal
action in order to defend against the forfeiture.

A member commented that any judicial economy created by allowing simultaneous
forfeiture actions and criminal prosecutions was lost if third parties claimed an interest in the
property because this would require ancillary proceeding.

Judge Dawson's motion to add the proposed new rule to the annual rules package FAILED
on a unanimous vote.

Staff explained that, because the courts were no longer involved in appointing counsel for
indigents, amendments to Rule 44 were needed.

Judge Geiger MOVED to approve the amendments to Rule 44. Mr. Sturdevant

-8-

seconded.

Without objection, "2005"on lines 50 and 56 of the proposal was replaced with "2006."

A member asked about the provision of the rule allowing appointment of counsel for
non-indigent defendants. A member explained that sometimes defendants cannot find an
attorney
to take their case. The defendant can then come to the court and the judge can appoint a
defense attorney, who the defendant then has to pay.

A member said that, in some cases, a defendant will not have a low enough income to
qualify for indigent counsel. Yet, the defendant still may not have enough money to hire
counsel or pay a retainer, especially in a serious felony case. The court can then get involved
and appoint a defense counsel and help the defendant arrange payment. The member said
the court would still need to continue to do this even with the transfer of indigent defense
responsibilities to the Commission on Legal Counsel for Indigents.

A member said the commission would only be appointing attorneys for defendants who
were indigent. The member said that when non-indigent defendants could not find counsel,
this was a judicial problem.

A member asked who was responsible for paying a court-appointed attorney if the
defendant did not pay. A member responded that the court can compel payment if the
defendant is convicted, but that if the defendant is acquitted, the attorney must use civil
collection methods to obtain payment.

A member said that the language of the rule seemed to require the court to appoint counsel
whenever a defendant alleged an inability to find counsel. The member said that the case
law only requires such appointments when there is a possibility of imprisonment.

Judge Simonson MOVED to delete lines 14-15 from the proposal. Judge Kleven seconded.

A member said that a defendant has a constitutional right to be represented by an attorney
at a criminal trial. The member said that, when a defendant who can afford counsel cannot
find counsel, judges have always stepped in to assist. The member said that the provision
on court appointments for non-indigent defendants is necessary. A member agreed that it
was important to retain the provision. A member commented that requiring defendants go
forward pro se in criminal cases when counsel could not be found was not appropriate.

-9-

A member said there could be situations where the judge could not find anyone to represent
a defendant. The member said that the rule should not require the judge to find counsel.

Without objection, Judge Simonson's proposal to delete lines 14-15 was substituted to
change the word "must" to "may" on line 14 and retain the remainder of the text.

A member wondered whether any judge would allow a trial to go forward when a defendant
wanted a lawyer but claimed an inability to find one, given that any resulting conviction
would likely be vacated. The member said that a judge would be required to act to appoint
counsel in such a situation.

A member said that sometimes defendants who claim an inability to find a lawyer just are
not trying very hard, which creates a difficult situation for the court. A member said that
having an independent commission in charge of indigent defense has taken a great burden
off the courts, but that requiring judges to appoint counsel in cases where defendants claim
inability to locate counsel returns some of the burden.

A member responded that courts have a constitutional duty to see that all defendants who
want representation can obtain representation. The member said district judges are in a good
position to twist attorney's arms to assure that representation is provided.

A member said that it is only in rare situations that a non-indigent defendant will need the
assistance of the court in order to obtain counsel, especially since appointment would only
be required in cases where imprisonment was possible. A member agreed that such
situations did not happen often.

Judge Simonson's motion, as substituted, CARRIED.

Judge Geiger's motion to add the rule, as amended, to the annual rules package CARRIED
unanimously.

Staff explained that amendments to Fed.R.Crim.P. 29, 33 and 34 had been approved so
similar amendments to the corresponding North Dakota rules were being proposed.

Judge Dawson MOVED to approve the amendments to the rules. Ms. Moore seconded.

A member asked, if these rules were amended, where a party seeking an extension of time
to file would turn. Staff explained that the general extension provision applicable to the
criminal rules is in Rule 45.

A member asked whether the 10-day deadline in these rules could be deleted but language
allowing the court to set another deadline could be retained. A member responded that this
would allow parties to indefinitely delay the filing of motions under these rules.

Judge Geiger MOVED to adopt additional language in the explanatory notes of the three
rules indicating that requests for additional time under these rules must be made under Rule
45. Ms. Schmitz seconded.

A member asked for clarification of what would happen if a party failed to make a motion
for extension of time within the time frames currently in these rules. A member explained
that the rules' time frames were jurisdictional, so if a party fails to timely file a motion or a
request for extension of time, the party would not be allowed to obtain relief. The member
said that the proposed changes would relax time limits for making extension requests.

The motion to amend the explanatory note CARRIED.

Judge Dawson's motion to add the rules, as amended, to the annual rules package
CARRIED unanimously.

Staff explained that amendments to Fed.R.Civ.P. 6 and Fed.R.Crim.P. 45 had been
approved so similar amendments to the corresponding North Dakota rules were being
proposed.

Ms. Moore MOVED to approve the amendments to the rules. Judge Kleven seconded.

A member said it was strange that, under the proposed language, days would be added after
the period. The member said that some language had been omitted from the proposal that
was in the federal proposal, the words "otherwise expires." The member said that use of the
word "after" would have made more sense if the omitted language had been used in the
proposal. The member said that the current rule's use of "to" was preferable to "after."

Staff explained that the proposal was based on the final federal amendments and that the
"otherwise expires" language appeared in an early federal draft.

Mr. Kuntz MOVED to remove the word "after" and change to "to" on Rule 6, line 34 and
Rule 45, line 31. Mr. Sturdevant seconded. Motion CARRIED.

A member asked why the word "three" was spelled out in the proposal instead of a numeral
being used.

Judge Simonson MOVED to use a numeral "3" on line 34 of Rule 6. Mr. Quick seconded.

A member commented that basic style rules dictated that numbers up to ten be written out
and numerals used for numbers greater than ten. A member said that this rule was not
consistently followed throughout the rules and that the Committee should choose a guideline
for numbers and then follow it consistently.

Motion FAILED.

Ms. Moore's motion to add the rules, as amended, to the annual rules package CARRIED
unanimously.

Judge Nelson MOVED to approve the amendments to Rule 3.2. Ms. Schmitz seconded.

A member said that the proposed amendment to the rule regarding testimony in family law
proceedings should be reviewed by a broad spectrum of practitioners in family law. The
member suggested that the Committee gather comments on the proposed amendment before
taking further action on it. The member volunteered to distribute the proposal to members
of the bar.

Ms. Moore MOVED to postpone consideration of the amendment to subdivision (b) and
of the amendment to Rule 8.4 (next agenda item) so that comment could be sought from the
bar. Mr. Kapsner seconded.

A member commented that postponement would be wise.

Motion CARRIED.

A member discussed the proposed change relating to standing orders for hearings. The
member explained that the East Central Judicial District had adopted a standing order
requiring hearings on certain types of motions because hearings were generally needed on
these motions. The member asked why having such a requirement would be a problem.

Staff responded that standing orders, unlike local rules, are not published. Staff said
out-of-town lawyers might wholly unfamiliar with standing orders and would have no way to
look
them up. The Chair further explained that the Rule on Local Court Rules sets out

-13-

a procedure under which lawyers and other interested parties are provided with notice of
local rule proposals and have an opportunity to comment, which is something that does not
happen when standing orders are issued.

The Chair said that the ECJD standing order appeared to be cover ground that should be
covered in a local rule. The Chair added that the Committee's role on new local rules was
to evaluate whether they should be extended statewide, but that it could not exercise this role
with standing orders.

A member responded that a standing order could be issued in a more timely manner than
a local rule, and that the ECJD had issued the standing order on hearings in response to an
immediate need, the expiration of the former ECJD local rule on hearings. The member also
said that hearings were required by statute for the types of motions embraced by the standing
order.

A member commented that whether a hearing should be conducted on a motion was a
procedural issue, not a substantive one, so a statutory hearing requirement was subject to
being superseded by procedural rule. The member said that Rule 3.2 should apply uniformly
statewide so that lawyers across the state would know what to expect when practicing
outside their home districts. The member said the Committee should discuss whether
standing orders and local rules should continue to exist. The member said a lawyer should
be able to walk into any court in the state and know what the rules are, but that this is not a
reality because of standing orders and local rules.

Mr. Kuntz MOVED to table the rule until the April meeting. Judge Geiger seconded.
Motion CARRIED.

Staff explained that, because of the recent Supreme Court decision in Wetzel v.
Schlenvogt,
2005 ND 190, 705 N.W.2d 836, it was not clear whether corporations and other businesses
could act in small claims court without legal representation. Staff explained that the new
Rule 10.2 was proposed so that businesses could continue to use small claims court without
legal representation.

-14-

The Chair explained that a corporation is an artificial person that has to be represented by
a natural person and that a lawyer generally plays the role of representative. In small claims
court in some parts of the state, non-lawyers appear to represent corporations. The Chair
said that the rule proposal addresses this circumstance.

Mr. Sturdevant MOVED to approve the new Rule 10.2. Mr. Mack seconded.

Mr. Kapsner MOVED to delete the sentence at lines 6-7, the second sentence of
subdivision (a). Ms. Schmitz seconded.

A member said that if a lawyer appears to represent a party in small claims court, the
lawyer should be able to represent the party without being limited by the small claims court
referee. The member observed that some small claims court referees are not familiar with
the rules or the law and should not be allowed to restrict lawyer behavior. A member agreed
that the proposed language gave small claims court referees too much discretion to limit the
scope of a lawyer's representation.

A member commented that, under the small claims court statutes (and unlike in district
court) the court conducts the proceeding. The member said that small claims court
proceedings are designed to be quick, so attorneys do not always get to operate as they wish.
The member said lawyers should not expect small claims court to be conducted the same
way as district court.

Mr. Kapsner's motion CARRIED.

Mr. Kuntz MOVED to insert the word "employee" at line 10 then to delete everything after
the word "association" on line 11, with deletion continuing through line 17. Ms. Moore
seconded.

A member said the change was aimed at allowing employees to appear in small claims
court to represent a corporation without formal corporate authorization. The member said
that companies located throughout the United States operate offices in North Dakota and
periodically they become involved in small claims court actions. The member said it is
typically mid-level employees like office managers and foremen who are in the best position
to go and represent the company in small claims court. The member said it would create
problems if these employees needed to get formal authorization from corporate headquarters
before representing the company in small claims court.

A member said the motion raises the question of what happens if an employee goes into
local small claims court and gets the matter removed to district court without corporate

-15-

authority to do so­has the corporation submitted to district court jurisdiction in such a
case?
Outside of small claims court the employee, whether authorized or not, cannot continue to
represent the corporation.

A member said that an officer, owner or partner should be able to represent a business
without producing documentation, but an employee or agent should be required to provide
authorization.

A member responded that mid-level employees have been representing businesses in small
claims court in North Dakota for years without having to show authorization documents.

A member said that a rule requiring employees to be authorized before representing a
business in small claims court is needed. The member said that these employees should also
be required to produce authorizing documents or other evidence (including testimony) in
court.

A member said that requiring documentation would create problems. The member said if
the proposal was approved, a referee would have no choice but to enter default if an
employee showed up in small claims court without documentation. The member said the
amount of money involved in small claims court is too small to warrant excessive formality
in procedure.

A member said that a requirement for an employee or agent to provide some evidence of
authority would create a minimal burden.

Mr. Kapsner MOVED a substitute motion to use the language "employee or agent" instead
of "employee" and to retain language starting in line 15 of the proposal requiring evidence
of authority Mr. Quick seconded.

A member responded that small claims court is not a court of record. If a party comes in
and testifies about their authority, there will be nothing to show later on what they said or
did not say. The member said that any exhibits are given back to the parties once the
proceeding is over. The member said that the only documents filed after the proceeding are
the claim affidavit, request for hearing and judgment.

A member said that adopting the proposed substitute language would complicate small
claims court procedure. The member said an employee's authority to represent a business
should only be an issue if the matter gets removed to district court. The member said that
the small claims court statute, fairly interpreted, states that a business can appear in small
claims

-16-

court without an attorney. The member said that the Wetzel decision implied that
businesses
would now have to hire attorneys. The member suggested that any rule changes should be
directed toward correcting this problem.

A member said that the rule proposal did not address political subdivisions. The member
said political subdivisions also have appeared in small claims court without attorneys.

A member said that, given the fact that limited records are kept of small claims court
proceedings, requiring employees to prove that they have authority to represent businesses
would be an empty gesture.

Motion to substitute FAILED.

Mr. Kuntz's motion CARRIED.

Mr. Mack MOVED to amend line 10 to add "or authorized employee or agent" and to
delete all material following. Mr. Kapsner seconded.

Motion to amend CARRIED.

Ms. Schmitz MOVED to add "or political subdivision" to line 8 of rule. Mr. Kuntz
seconded. Motion CARRIED.

A member asked if political subdivisions often appeared in small claims court. A member
responded they appeared often in small claims court.

Without objection, "political subdivisions" was added to the title of the rule in line 8.

A member said that the language of the rule might send a message to collection agencies
that they somehow qualify to act in small claims court. A member responded that the statute
clearly says that assigned claims cannot be heard in small claims court. The member
suggested that language be added to the explanatory note cross-referencing the statutory
provision.

Judge Hagerty MOVED to add language to the explanatory note: "Under N.D.C.C.§
27-08.1-01(3), a claim may not be filed in small claims court by an assignee of the claim."
Ms. Schmitz seconded. Motion CARRIED.

A member suggested that, under the proposed language approved by the Committee,

-17-

a collection agent could appear in small claims court as an agent of a business association.
A member responded that a claim could not be assigned. A member responded that this did
not prevent agents from showing up on behalf of creditors.

A member said the language of the rule could be further modified to head off participation
of collection agencies in small claims court.

A member asked whether the term "partnership" in the rule was broad enough to include
limited liability partnerships and other variations on the partnership form. The consensus
was that the term was broad enough.

Judge Hagerty MOVED to add a new sentence to the rule text: "An owner or employee of
a collection agency may not act as an agent under subdivision (b)." Judge Simonson
seconded. Motion CARRIED.

A member asked if the language would preclude an insurance company that paid property
damages from taking an assignment from the insured. A member responded that the small
claims court statute itself prevented assignees from acting in small claims court. A member
said that sometimes an insurer will bring the insured into small claims court and let the
insured appear to prosecute the claim.

Mr. Sturdevant's motion to approve the new rule, as amended, CARRIED unanimously.

Mr. Kuntz MOVED to forward the new rule immediately to the Supreme Court. Judge
Foughty seconded. Motion CARRIED.

FOR THE GOOD OF THE ORDER

The Chair announced that the Committee had worked through its backlogged material and
asked Committee members for suggestions on topics for the next meeting.

A member said that there did not appear to be a consistent procedure for formal probate
hearings. The member said that there was a statutory probate jury demand procedure that
was not consistent with the civil rules. The member said it might be worth looking at this.
Another member suggested there was also an issue of whether Rule 3.2 applies to probate
proceedings. The member said the Committee should look at how the statutes in the probate
code mesh with the rules of procedure.

A member suggested that the Committee look at N.D.R.Crim.P. 45(b). The member

-18-

said almost all attorneys serve a sufficient subpoena with notice and check. The member
said 45(b)(2) looks like it requires an additional document, a notice for production. The
member said that this document is not generally sent with the subpoena and should not be
required.

A member said the Committee should look into creating a pretrial diversion rule. The
member said that Minnesota has Rule 27.05 which could be used as a model. A member
responded that there is an alternatives to incarceration commission working in this area and
it might be wise to wait and see what they come up with.

A member suggested that there should be a rule on safe firearms handling in the courtroom
when a firearm is to be offered into evidence. The member said that Judge McCullough had
been working on such a rule.

A member said the Committee should revisit N.D.R.Crim.P. 4(c)(3) on demand to file a
complaint. A member said the Committee could address issues such as whether one party's
demand for a complaint to be filed applies to all parties.

A member said the Committee might consider whether to expand reciprocal discovery
under N.D.R.Crim.P. 16.